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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

13 MAR 2014

IM (Nigeria) v Secretary of State for the Home Department

There is no requirement that where hospital treatment is required for a person in immigration detention, they must be released in order to receive such treatment.

5 December 2013

Court of Appeal

Lewison, Lloyd Jones LJJ and Sir Stanley Burton

(1)       The Appellant, IM, was a Nigerian national who had been held in immigration detention since 25 July 2013. Since 27 August 2013, he had consistently refused food, and intermittently fluids. His application for judicial review was premised on the basis that his continued detention was unlawful because it was a breach of the Respondent's published policy on detention, as his serious medical condition could not be managed in detention, and because it breached Articles 2 and/or 3 of the ECHR.

(2)       It was never disputed that the Appellant had capacity to understand the consequences of his refusing food and fluids. The Appellant had repeatedly been offered a transfer to hospital, and treatment there, but he had refused insisting that he be freed from detention.

(3)       The grounds of appeal from the Administrative Court were:

(a)       The judge had erred in finding that the Respondent could detain persons in a hospital pending their removal from the UK, except where a direction was made under section 48 of the Mental Health Act 1983.

(b)       The Judge had erred in failing to hold that continued detention breached the Respondent's detention policy and was therefore unlawful;

(c)       The Judge had erred in holding that the detention did not constitute a breach of the Hardial Singh principles;

(d)       The Judge had erred in holding that the Appellant's continued detention did not breach Articles 2 and/or 3 ECHR.

(4)       HELD: The Court found that there were no limitations under section 145 of the Mental Health Act 1983 which limited the power to detain in a hospital. There were no limits to say that the power to detain in a hospital could only take place where a person had been detained under section 48 of the Mental Health Act.

(5)       It would not logically follow that were a person not able to receive medical treatment in a detention centre or prison, he would have to be released from immigration detention, regardless of his risk of absconding. The Court thus held that the Respondent did have the power to detain a person in a hospital.

(6)       As to ground b, the Court held that the failure of the policy to expressly provide for those who require removal to hospital but should remain detention was because it was plainly obvious that those persons who required medical treatment should be removed to hospital. There need not be a policy covering every possible circumstance in order to make the exercise of the Respondent's powers lawful. As there was nothing to prevent a person being transferred to hospital, there was no requirement of release from detention in order that hospital treatment could be received.

(7)       The Court held that the Administrative Court had been correct to reject the submission that continued detention was unlawful due to a failure to comply with the Respondent's policy. In the absence of evidence to the contrary, there was nothing to show that the Appellant's condition had become irreversible, or that if he accepted treatment he could not be removed from the UK within a reasonable period of time. As such, the point at which there was no reasonable prospect of removal had not yet been reached. At the time of the hearing before the Administrative Court, and at the time of this hearing, there was still a reasonable prospect that the Appellant could be removed within a reasonable period time. The Judge had therefore not erred in finding that there had not been a breach of the Hardial Singh principles. The pressure on the Appellant was self-inflicted, and not a result of detention being for any purpose other than that set out in the statute.

(8)       In relation to ground iv, the starting point is that positive steps must be taken to preserve life and avoid inhuman and degrading treatment (articles 2 and 3 ECHR). The Respondent was not under a general duty to release the Appellant from detention pursuant to Articles 2 or 3 ECHR, and had taken reasonable steps to prevent breaches of these rights. His reasons for refusing foods had been investigated, his capacity assessed, legal advice had been provided and medical examinations had taken place. The Court stated that it was difficult to see what other steps could have been taken. There was nothing irrational in the Respondent's conclusion that his release was not required, but that he should be assisted in accessing treatment.

(9)       The appeal was thus dismissed.

Claim dismissed

Key paragraphs

[11] - Grounds.

[19] - Power detain in hospital.

[23] - Power detain in hospital.

[38] - Policy.

[42] - No need release.

[45] - Ground ii failed.

[50] - End of life plan.

[53] - Prospect of removal.

[57] - No breach Hardial Singh.

[61] - Pressure self-inflicted.

[68] - No obligation release on health grounds.

[68]-[71] - Articles 2 and 3 ECHR.

[77] - Not irrational.

[78] - Conclusion. 

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